Both sides with counsel, Toronto jurist Mr Justice F.L. Myers
awards $ 5 K costs to respondent condo corp in endorsing & upholding an un-detailed lower court ( ? unreported Small Claims with Divisional appeal ) claim confirmed lost by a condo owner.
(
This again ain't legal advice : Ontario "Occupiers"
are not "guarantors", the relevant act
generally raising a DUTY only of "reasonable" steps to keep persons or property safe ( exceptions applicable of course ). Further, duty-complying condo governance duties under Ontario's
Condominium Act 1998 are
generally not as "guarantors" either. How firm are the grounds for an owner to win compenation for loss or injury, much less a form of "derivative" remedial intervention by a court ? . . .
The text here indicates that the losing condo owner brought forward only the occurrence of vandalism ( ? his own financial loss ? ), apparently failing to try establishing a
credible causal connection to some sort of shortfall of duty or risk altered by changing security measures at access point to the U/G parking. )
But this decision at least adds one judicial expression as to what specifics might a modern Ontario court think passes the test of keeping reasonably safe involving common element underground garage issues.
In Friedrich v. M.T.C.C. #1018 Justice Myers holds that such change decision :
met what he calls “STANDARD “ ( sic ) of care
to U/G users under OLA Occupiers' Liability Act RSO 1990 ch O.2
https://www.ontario.ca/laws/statute/90o02AND
is
entitled to judicial deference under a “business judgement” entitlement. ( Quote : "(3) "Under the Condominium Act, 1998, the Board’s business judgment is entitled to deference" - unquote.
But where is that within the text of that Act itself, as opposed to some jurisprudence ? Business Judgement shields have been addressed far wider than in Ontario condo disputes. 'Has long been laboured in that same vineyard' etc . . . eg See some cafcor topics below. They are widespread shields against condo / HOA / POA beefs in the U.S.
Whether the security changes were a breach of "DUTY OF CARE" by the governancers, Mr Justice Myers
applies the phrase "standard of care" instead of the literal wording of Ontario's Occupiers' Liability Act ( "duty of care" ).
It's a distinction for example once clarified differently in certain televised hearings of Canada's Supreme Court. Maybe only that court cares if at all.
The "duty" discussion could have also started with corporation duties broadly stated within Ontario's Condominium Act 1998 as amended. Maybe bottom line outcome no different.
Friedrich v. MTCC No. 1018, 2019 ONSC 1153 issued Feb 19/19
http://canlii.ca/t/hxl9l * *
Several condo litigation outcomes directly/indirectly addressing the Business Judgement shield :
-
Reminiscent of "derivative" remedy sought for all corporation shareholders; NOT a previous Cafcor item :
Patterson v Y.C.C. # 70 et al 2018 ONSC 3735 issued Aug 8/18
http://canlii.ca/t/htcmw ( REJECTS s 134 application by a former Director against Condo Corp ( current Board ) & one Director.
Expressly concurring with the Board's raised defence shield of "Business Judgement", the adjudicator "cannot find that court intervention is required" ; 7 weeks later awards winning defendants $ 14.7 K of the $ 41 K the defenders claimed incurred to defend “on a substantial indemnity basis". = a process that didn't come cheap. Addendum : appeal rejected by ONCA April 24/19
http://canlii.ca/t/hzxcw )
- “BUSINESS JUDGEMENT trumps Declaration & Oppression remedy: resuming PAY PARKING Carleton CC #375”
http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18586&catid=9#18586- less direct but inherent discussion of Business Judgement :
CHEUNG v Y.R.C.C. # 759 PARKING ALLOCATION by-law HELD NOT OPPRESSIVE at Richmond Hill eatery
http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18540&catid=9#18540